8/11/2010 @ 6:00AM

How 'Green' Is Justice Kagan?

As Elena Kagan raised her right hand to be sworn in as the 112th U.S. Supreme Court justice, she remained an environmental mystery. Yet, an examination of her background reveals flashes of green that should calm uncomfortable environmentalists who are saying goodbye to their judicial champion, Justice John Paul Stevens. Kagan’s time as Harvard’s Law School dean, her feelings about the executive branch’s power and even a few of her comments during her confirmation hearings offer signals that the newest member of the high court may be as green-leaning as Stevens.

During the Senate confirmation process, most of the focus on Kagan’s time as Harvard Law dean surrounded her decision to keep military recruiters off campus. Yet, Kagan’s Harvard tenure may offer more insight about a potentially environmentally friendly member of the Supreme Court. Kagan oversaw the creation of Harvard’s Environmental Law Program and an Environmental Law and Policy Clinic. Kagan is often credited with bringing Jody Freeman to Harvard to teach at the new environmental law program. Freeman is now back teaching at Harvard after a stint in the Obama administration as the Counselor for Energy and Climate Change.

Kagan also wrote a fluffy piece in the Harvard Law Review that offered an interesting nugget. While the piece was mainly about innovative approaches to environmental law, she wrote, “until fairly recently, environmental legal practice was built mainly on litigation, but today–largely because of the growing perils posed by greenhouse gas emissions and global climate change–the field is expanding well beyond that model.” While the statement may serve simply as an acknowledgment of the science behind climate change, it jibes with another nugget offered during Kagan’s confirmation process.

California Sen. Dianne Feinstein broached an environmental issue with Kagan in June when she asked, “Do you believe it is possible for citizens to demonstrate that environmental harms have injured them for constitutional purposes?” Feinstein claimed many individuals were struggling to sue for damages caused by polluters because it was difficult to prove who caused what harm. Kagan’s lengthy response included a description of Article III of the Constitution. Kagan went on to explain that the definition of “injury,” could include environmental issues. “That injury can be of many different kinds,” said Kagan, “it may be an economic injury, but it also may be an injury in terms of if the environment has degraded and if you can’t use the parks the way you want to use the parks.” I’m not a legal expert, but if Kagan says “injury” can include damage to parks and the environment then I think environmentalists can breathe a bit easier. Indeed, 45 environmental groups signed a letter last week in support of her nomination.

Still, Kagan enters the Supreme Court at a time when many of the conservative justices remain in a huff about the commerce clause. The commerce clause may be what a future challenge to the new health care law is based upon, and it is also the basis for a decision allowing the Environmental Protection Agency (EPA) to regulate greenhouse gasses. While a 2005 piece on CNN described Chief Justice John Robert’s view of the commerce clause as, “not just narrow; it’s virtually microscopic,” Kagan’s view may be quite different. The University of California’s Environmental Law and Policy Blog describes Kagan as being much more liberal on the commerce clause, while favoring agencies like the EPA to implement policy. “We just need judges who understand that the paramount role in environmental law is played by Congress (with an assist from administrative agencies), not by the courts,” Dan Farber of UC Berkeley and UCLA Law wrote after Kagan was nominated.

With John Roberts seething about a liberal take on the commerce clause, and with Alaska Sen. Lisa Murkowski’s near topple of the EPA’s authority to regulate carbon emissions in July, Kagan’s views on the commerce clause and executive branch power may make her an ally that environmentalists never expected.

The Kagan era is upon us. The Stevens era is over. And while Kagan technically replaces Stevens, environmentalists will base their feelings on how well she replaces him with her future decisions and opinions. But, for now, a few glimpses into the past will have to do.